Justice Department Gets Tougher on Use of Torture

Times Staff Writer

Reversing course, the Justice Department has adopted a revised view of what constitutes torture under federal law, rejecting an earlier department position linked to abuses of military prisoners and suspected terrorists in Cuba and Iraq.

“Torture is abhorrent both to American law and values and to international norms,” the new analysis begins.

The opinion replaces an August 2002 Justice Department memo that implied that torture of military detainees could be justified under certain circumstances. The disclosure of that memo last summer triggered a firestorm of criticism from human rights groups, members of Congress and others.


The Bush administration later disavowed the memo and said it was working on a replacement document. Officials have also asserted that administration policy has always been to treat prisoners humanely. As a result, it was unclear whether the new position would have any effect on the treatment of detainees.

Nonetheless, the reversal in legal thinking reflects a continuing effort by the administration to quell public concerns that it has condoned abusive treatment of detainees in prosecuting the war on terrorism -- concerns fueled by a persistent stream of reports of misconduct by military interrogators and guards.

And it comes a week before Alberto R. Gonzales, a central figure in the legal drama, is due to face a tough Senate confirmation hearing as Bush’s nominee to be U.S. attorney general. Gonzales was the top White House lawyer at the height of the controversy.

The 2002 memo drew fire for the narrow protections it afforded terrorism suspects under federal anti-torture law and the broad power it suggested Bush had to ignore even a narrowly construed law.

For example, the memo concluded that perpetrators could be charged under the torture law only in cases in which the pain they inflicted was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The new opinion, published on the Justice Department website late Thursday and first reported in the Washington Post and the Wall Street Journal, expressly rejected that view and concluded that Congress did not intend to prohibit conduct involving only “excruciating and agonizing” pain.


Although it acknowledged “no clear, objective, consistent measurement” for evaluating pain, the 17-page memo cited a number of court cases illustrating the sort of abuse that might constitute torture under the law. Such conduct ranged from “repeated threats of death and electric shock” to “severe beatings to the genitals, head and other part of the body with metal pipes,” among other cases.

The authors said they disagreed with the previous findings on what constituted torture, which they said were drawn in part from language in other statutes that regulate the provision of health benefits during medical emergencies.

The new document sidestepped one of the most contentious issues in the earlier version: that Bush had authority superseding the anti-torture laws and that U.S. personnel had legal defenses against criminal liability in such cases.

The authors of the new document said consideration of those issues was unnecessary and was “inconsistent with the president’s unequivocal directive that United States personnel not engage in torture.”

The role of Gonzales in the drafting and circulation of the Justice memo and other once-secret administration documents governing the rights and treatment of detainees is expected to dominate questioning at his confirmation hearing before the Senate Judiciary Committee, set for Thursday.

Gonzales requested the controversial 2002 memo in response to a query from CIA officials, who were concerned about possible criminal prosecution of their operatives in connection with their activities in Afghanistan after the Sept. 11 attacks.


As White House counsel, Gonzales also was instrumental in crafting other legal arguments supporting the war on terrorism, and he was an architect of the system of military tribunals that the Pentagon has used to prosecute suspected terrorists at the U.S. naval base at Guantanamo Bay, Cuba. Those proceedings are on hold because a federal judge in Washington found that they violated basic rights under the Geneva Convention.

Human rights groups said the latest memo was an improvement, but that it mainly served to highlight the flaws in the original document. Given widespread reports of detainee abuse, the revised document comes after much of the damage has been done, they said.

“It will take more than just reissuing a new memo from the Justice Department to repair the breach between the law and the practice in the field,” said Elisa Massimino, director of the Washington office of Human Rights First.

The divergent legal opinions, and the decision of Justice to rewrite the first version, are highly unusual. The findings of the department’s office of legal counsel, which prepared both documents, are supposed to be nonpartisan and rarely change.

The department’s critics asserted that the positions staked out in the original memo demonstrated how a few Justice officials allowed themselves to be co-opted by hard-liners in the White House and the Pentagon on war-related issues. Even some career military lawyers have expressed concern that the views on torture were counterproductive and put soldiers in jeopardy in the event that they were captured.

Department officials have countered that the memo was an exercise in exploring the outer bounds of the law and was never intended to endorse specific practices.


The assistant attorney general who signed the original memo, Jay S. Bybee, subsequently left the department to become a federal judge.